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November 2015 Archives

Thanksgiving Weekend DUI

Thanksgiving weekend is the number one (#1) weekend for DUI arrests in the United States.  Many of these come from college students returning home for the first time since going away.  The freedom and use of alcohol is combined with driving to visit old friends. Most of these occur on the Wednesday prior to Thanksgiving and the Friday following, as they are two of the biggest bar/drinking nights of the year.  Others may come from having too much wine and turkey while trying to liven up conversation with extended family.  Whatever the reason, this late weekend in November provides for many DUI and OVI arrests. As always, best advise is to avoid driving a motor vehicle if you have been drinking alcohol.  If you are stopped for suspected DUI, make sure that a video is working prior to preforming field sobriety tests.  The officer's recollection of the acts is much less reliable than a video camera with audio.  If a breathalyzer is offered, it is your decision whether or not to comply.  Refusal can be used against you and can cause license suspension.  That said, new laws allow for ignition interlock so that you can continue to drive even if you refuse the breathalyzer. If you are arrested, contact an attorney for legal representation.  I recommend an experienced criminal defense attorney who regularly practices in the county of arrest.  The attorney will know the lay of the land, who to discuss and the general tendencies of the prosecutors and judges in that county. For representation in Hamilton County, OH, or Campbell, Kenton or Boone counties in Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected].  During weekend and after hours, email is the best way to reach counsel.

Thanksgiving Problems?

As a day of giving thanks, some people are forced to realize that they are not content with their familial situation and are in need of divorce and dissolving of the marriage.  Others are fighting with their children's other parent about time and visiting with family and friends. I highly encourage people to be civil on Thanksgiving, as well as all days.  Be thankful for your children and, in doing so, be thankful for the mother/father of your children for bringing them into this world.  Be supportive during these trying times as many holidays are extremely stressful both emotionally and financially. If you have problems with visitation, it's already too late for anything except looking at your decree and the local rules.  Kenton County standard rule is as follows:

What To Do If DSS Takes Your Children

If DSS takes your children, then they have already obtained an emergency Order from the Court and made allegations to the court that the children are abused, dependent or neglected and the court has issued temporary orders granting custody to the State.  One of your first calls should be to an attorney.  You should inquire to DSS/CHFS as to (1) where your child will be placed; (2) are there criminal charges pending, or juvenile, or both; (3) when is your next court date, time and location. You should be weary to meet with any police officer, investigator or police agency. without an attorney.  You should meet with the social worker who is handling your case or investigating your case.  This social worker's primary job is first to investigate, then the goal should be to work toward reunification.  During the meeting, you are not required to admit to anything or give information which may be against your interest.  You should pay attention to (1) the goals of DSS and (2) the plan toward reunification.  If possible, it is generally best to work with them toward reunification as this is often the fastest and most efficient way toward having the children returned.  AGAIN, each case is different and an experienced attorney can help guide you through this process - advising what should and may not be required. If you cannot retain an attorney prior to the first court date, one will be appointed for you when you arrive in court.  An attorney can help protect your rights and those of your children.  In juvenile court, there will be an attorney representing the Commonwealth, also know as the prosecutor.  There will also be an attorney appointed to represent each parent (whether absent or present) as well as the child.  The child's attorney is referred to as a GAL (Guardian Ad Litem). The first hearing is a probable cause hearing to determine if an emergency exists to keep the child(ren) away from the parent/guardian.  If so, the Cabinet and Court will first look to place the child(ren) with a relative. If no relatives are available or viable, the child(ren) will be placed into foster care. After the probable cause hearing, the court will schedule the matter for adjudication.  This hearing is to determine if there was an act of abuse, neglect or if the child(ren) are dependent.  You will have an opportunity to speak and present evidence at this hearing. If you are involved in any juvenile court case of abuse, dependency or neglect, you should have an attorney.  Like criminal law, a private attorney is often preferred to an appointed attorney. For consultation and advise in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected].  Call 581-MIKE.

How Does Prosecution Choose Trafficking v Possession?

Trafficking of a controlled substance versus possession of the same substance can make a significant difference in the outcome of a case as well as the amount of time that a defendant may be looking at if sentence is imposed. There are some simple rules that can be applied, however there are exceptions.  Possession is a lesser charge, often a class D felony in Kentucky and may be resolved with deferred prosecution, diversion or probation, often including treatment.  Trafficking is generally a class C felony in Kentucky and nearly always results in a period of incarceration if convicted.  This can very greatly from state to state as well as in the federal level. (Note: Feds rarely concern themselves with possession cases) Generally if there is a relatively small amount of the controlled substance and it is not individually packaged for resale, the charge will be that of possession.  A number of factors may be considered both by the charging agency (police, Drug Strike force, FBI, DEA) such as: number of units, packaging, cash found on the defendant or in the residence/car, scales, division of drugs.  Also often considered but not evidence is the "word on the street."  If the agency obtains a warrant due to believed drug sales they will often charge with trafficking even though the evidence really leads to be a possession-type case. By way of examaple, assume that someone is found with 2g of heroin.  This is on the high side for what many consider to be "individual use."  If it is found near $2,500 cash and it is packaged in 4-10 separate dosage units and a digital scale is nearby, the likelihood is that the defendant will be charged with trafficking. However, if the 2g is in one unit, there is no money or scales and only a needle nearby and the defendant is a significant user, it may be more likely that he will be charged with possession. 218A.010(49) defines "Traffic" as: except as provided in KRS 218A.1431, means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance.  Of course, if there is evidence of actual trafficking, the charge will be trafficking regardless of the other factors.  For example, if a defendant has sold narcotics to an undercover agent or a confidential informant, they will generally be charged with trafficking regardless of the amount sold. If you have been charged with possession or trafficking, you are facing serious criminal charges and need to hire an experienced criminal defense attorney.  For a consultation in Northern Kentucky or Cincinnati, contact the Bouldin Law Firm and schedule an appointment.  Call Michael Bouldin at 859-581-6453 (581-MIKE) or email at [email protected].

What is Flat Fee Divorce?

Some attorneys - not all - will handle certain divorces for a flat fee. This is generally a set price for a divorce from beginning to end. A flat fee divorce is generally limited to truly uncontested and simple divorces without asset division. Even with a flat fee divorce, the client should be aware of other costs and fees.  Nearly all attorneys will have clients sign a Fee Agreement.  This should outline all costs and responsibilities of the client and the attorney.  In addition to the retainer, often additional fees and costs may be required and are paid by the client. These fees for divorce often include: filing fees, service fees, warning order attorneys, guardian ad litem, mediation costs and fees, and costs for depositions including court reporters.  If uncontested flat fee is reached, there are also often additional fees for QDRO preparation and division, preparation of Deeds and transfer of specific assets.  There are times when the fees may even exceed the legal costs. The majority of  divorce attorneys are paid on an hourly basis.  The attorney should spell out the process, initial retainer and anticipated costs in the initial consultation.  A retainer is a set amount of up front money.  If done on a flat fee basis, the retain may be the full flat fee or it may be a portion with payment arrangements for the balance.  If you do not understand your retainer agreement, be sure to ask.  A retainer is often a good faith down payment on services to be rendered.  Almost all attorneys requires some form of a retainer.     Generally, fees can be paid by check, cash, and any debit or credit cards.  Other arrangements may be made on an individual basis. If you have questions or concerns, ask your attorney. For a consultation in Northern Kentucky, call Michael Bouldin at859-581-6453 or email at [email protected].

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